'Superman' Lawyer Looks to SLAPP Away a Warner Bros. Lawsuit on Appeal

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Timothy A. Clay/AFP/Getty Images

In the ongoing war over the rights to the Superman franchise, Marc Toberoff has scored a small win as he prepares for an important hearing against Warner Bros. at the 9th Circuit Court of Appeals.

Warners is suing Toberoff for tortious interference emanating from his efforts with the estate of Superman co-creator Jerry Siegel to execute a copyright termination notice on the property.

Toberoff responded by filing an anti-SLAPP motion to strike Warners' lawsuit, arguing that it amounted to an attempt to interfere with his client's First Amendment right to petition. A district court denied the motion, saying Toberoff's activity wasn't covered, leading Toberoff to make a challenge at the 9th Circuit.

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The two sides will argue each other at a future hearing, and in preparation, Warners filed a brief that included information taken from Toberoff's stolen documents that the 9th Circuit recently held the studio could use. But after an objection from Toberoff, the appellate circuit said, not so fast.

First, let's review what's happening.

In the long-running, complicated saga over legal rights to Superman, the coming 9th Circuit hearing will focus on the scope of anti-SLAPP laws, which are meant to discourage individuals and companies from using the courts to stifle First Amendment rights. Typically, this means free speech. A celebrity can't bring a meritless defamation lawsuit against a media outlet, for example, just to scare off a damaging news article. California's anti-SLAPP statute goes further, though, to prevent legal retaliation against those who speak their minds in public forums, and Toberoff argues his activity on behalf of the estates of Siegel and Joe Shuster, such as sending notices to terminate Superman copyrights, qualifies for such special protection.

Warners, of course, sees things differently. First off, the studio doesn't think that that what Toberoff does is really lawyering. Instead, they consider him to be an entrepreneur whose business dealings with the estates were meant to eventually gain a big percentage of revenues from the exploitation of Superman.

The parties have been going back and forth with legal briefs as well as a substantial discovery process. Some of the key documents that Warners has under its fingertips came from documents stolen from Toberoff's office and sent anonymously to the studio.

In April, the 9th Circuit ruled that these documents were fair game, rejecting Toberoff's contention that they were subject to attorney-client privilege. Since he disclosed them to law enforcement investigating the theft, he had already pierced the privilege.

Warners then attempted to use the documents to buttress its claims that Toberoff is an entrepreneur, but the 9th Circuit now says that Warners has to file a new answering brief without the newly obtained evidence. The studio may attempt to get the evidence into record with a separate request for judicial notice, but the appellate circuit typically frowns on parties adding to the record at this stage.

The studio believes that Toberoff's anti-SLAPP motion should fail because his activity shouldn't be protected merely because he has a law license. Toberoff thinks that Warners' lawsuit is a bullying, desperate attempt to punish him for successful legal work on behalf of his client. The case over Superman rights continues, including a separate appeal before the 9th Circuit that deals with the scope of termination, but the dispute has also become an important side battle that deals with the not-trivial difference between what a lawyer does and what a businessperson does. A hearing will commence later this year.

E-mail: eriq.gardner@thr.com

Twitter: @eriqgardner